New SRA Guidance for in-house lawyers

New SRA Guidance for in-house lawyers

As a former in-house lawyer, I fully appreciate the difficulties of managing competing interests and, therefore felt this important guidance needed flagging and familiarisation. If you are reading this as one of the NHS in-house lawyers making up the overall 34,000+ cross-organisational in- house lawyers nationally, I’d like to invite you to find out more and have the chance to discuss this important guidance by joining us at our forthcoming In-house Legal Forum on 2 July 2025 – watch out for registration opening on our website and my LinkedIn posts coming soon.

Having worked in-house for the NHS in the role of Head of Legal Services and subsequently General Counsel, I understand the enormous challenges faced by in-house teams. Professional isolation is real and can lead to difficulties in accessing support, networking and career development. Managing continuous competency can also be challenging and at our upcoming Forum we will discuss how to identify your learning needs as well as remaining compliant.  

Background

Fundamental SRA principles

All solicitors must uphold fundamental principles that are set out in section 31 of the Solicitors Act 1974, section 9 of the Administration of Justice Act 1985 and section 83 of the Legal Services Act 2007. They include acting with independence, honesty and integrity. In-house roles can sometimes challenge varying levels of inherent disconnect between being an employee of an organisation - and so having the organisation’s best interests in mind – with being a lawyer, and so acting in accordance with the principles of your profession (Ethics of in-house | Law Gazette).

SRA In-house solicitors thematic review – March 2023

The SRA initiated a review to improve their understanding and support of in-house lawyers in terms of how these lawyers support/foster an ethical culture, and the challenges they face in meeting their professional obligations. The SRA acknowledged that, “without adequate safeguards and systems, in-house teams may struggle to manage conflicting duties and ethical and regulatory risks”.

The SRA conducted a survey of in-house solicitors, conducted interviews and met with stakeholders in the in-house sector as a result of an in-house solicitors thematic review was published in March 2023 (Introduction - In-house solicitors thematic review).

The key findings were as follows:

• Safeguarding independence
• Managing risks with policies and controls
• Managing pressures and meeting regulatory obligations
• Maintaining continuing competence
• Ethical leadership and ethical risks.

This review concluded that many in-house lawyers experience commercial and political pressures and professional isolation. A particular challenge is balancing regulatory responsibilities and independence while safeguarding effective working relationships.

As well as the resources and information within the review report itself, the SRA also developed further resources as support for in-house lawyers.

In-house response to the SRA

Shortly after the review was published, The Law Gazette reported that 19 General Counsel had criticised it on LinkedIn saying it understated the severity of the risks faced by solicitors, did not reflect the evidence provided by the in-house profession, and offered insufficient support (GCs criticise SRA for 'understating' severity of in-house challenges | News | Law Gazette).

The Law Gazette also reported that at its flagship in-house conference in March 2025, the SRA was urged to consider support for junior lawyers acting as in-house General Counsel. This was because “General Counsel” is not a protected term. “GC” may not be lawyers, or be very junior lawyers, which creates a power dynamic when working with colleagues and balancing ethical obligations and managing legal risk (Solicitors Regulation Authority urged to support junior lawyers made GC by their company | Law Gazette).

Post Office Inquiry and in-house lawyers

The in-house profession has also come under the spotlight over the past year following revelations by in-house professionals at the Post Office Inquiry that they felt isolated, ill- trained and poorly supervised (Post Office scandal already a wake-up call for in-house lawyers | Opinion | Law Gazette). The final Inquiry report is awaited.

SRA Guidance

Following the thematic review, in March 2024 the SRA published draft Guidance that covered identifying the client, reporting concerns of wrongdoing, legal professional privilege, balancing ethical obligations and managing legal risk.

Following stakeholder feedback, new Guidance was issued in November 2024 (SRA | Dedicated guidance issued to support in-house solicitors | Solicitors Regulation Authority). It aims to address the unique challenges for in-house solicitors and serves as a response to the allegations of misconduct against solicitors raised by the Post Office Inquiry.

Key themes are ethics, confidentiality, and privilege. It acts as a reminder to in-house lawyers that their “professional standards must take precedence over the interests of their employer”. Also, while the Guidance does not contain any new regulatory standards or requirements, the SRA will consider compliance with it when exercising its regulatory functions.  

The new Guidance includes the following elements:

1. NEW: Legal professional privilege
   • Legal advice given by in-house lawyers will attract legal professional privilege in the usual way. The Guidance recognises the complexity of the scope of privilege in an in-house context.
   • The Guidance covers the purpose and preconditions for privilege, protecting and maintaining privilege, losing privilege: iniquity and waiver, disclosure and reporting obligations.
2. Identifying your client
   • The Guidance recognises this is not always straightforward in an in-house context.
   • The Guidance covers distinguishing between individuals, the organisation and group entities; protecting confidentiality; identifying and managing conflicts of interest and balancing acting in a client’s best interests with solicitors’ regulatory obligations.
3. Reporting concerns about wrongdoing
   • The Guidance recognises the added complexity to in-house lawyers of reconciling duties to report when a client has acted improperly – but that client is also their employer.
   • The Guidance covers wider public interest duties, when concerns should be reported internally and externally, obligations when wrongdoing persists, restrictions on use of NDAs, and confidentiality and privilege.
4. Internal investigations
   • Guidance is provided on establishing terms of reference, acting with independence, managing the process, decision-making and reporting obligations.
5. Guidance for employers on understanding in-house solicitors’ professional obligations
   • The Guidance flags that, as well as being employees, solicitors also have specific obligations as officers of the court and members of a regulated profession.
   • Guidance is provided for organisations and senior staff: what you can (and cannot) expect of your in-house lawyers, and the support which should be provided to them.
   • Guidance is also provided for governing boards, chief executives and senior officers: the role of in-house lawyers in supporting good governance, managing risk and supporting culture, and the support which boards can provide.

We look forward to discussing this in further detail with you at the In-house Legal Forum on 2 July 2025 – look out for registration opening on our website soon.